Indian Supreme Court makes homosexuality a criminal offence

[saakura]

Unbeleivable http://economictimes.indiatimes.com/news/politics-and-nation/homosexuality-is-criminal-offence-supreme-court/articleshow/27210542.cms

[Scott]

Apparently, they don't have enough problems in the country. Too much empty space in the prisons perhaps?

[anon8]

What!?

I thought India is becoming more progressive.

Life sentence?? They are mad.

Isn't India predominantly Hindu religion, fairly tolerant religion? How can this be?

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[saakura]

On closer reading, The Delhi high court had on July 2, 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC) and had ruled that sex between two consenting adults in private would not be an offence. This section 377 was introduced in 1861 by the ruling British.

The court has only said that Parliament is authorized to remove Section 377, but as long as this provision is there, the court can not legalise this kind of sexual relationship, the Supreme Court bench observed.

The bench, however, put the ball in Parliament's court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on the matter.

[sustento]

What's more disturbing are the comments below the article.

[anon8]

Another example of how religion poisons everything.

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[isanbirder]

"Supreme Court says so because the law so prescribes."

This was one of the comments! Any news of this kind will be followed by a host of homophobic comments; those in our favour are perhaps less likely to post. After all, they are letting themselves in for punishment, aren't they?

[LeCharivari]

What's more disturbing are the comments below the article.

Yes and no.

Adding them up and dividing them into 3 categories (anti-gay / pro-gay / others) I'm quite pleasantly surprised by how the comments stack up bearing in mind India's cultural conservatism:

The largest proprotion of the comments are neither pro nor anti-gay but are about whether the courts or the legislature should be making or cancelling laws, political issues, and the position of women.

Next are comments that are either specifically pro-gay rights or say that what consenting adults do in private is their own business.

The smallest number, albeit the most unpleasant comments, are the anti-gay ones.

[sustento]

When I read the article this morning the vast majority of the comments were anti-gay. Things must have changed in the past 7 hours.

[saakura]

What's more disturbing are the comments below the article.

Silent majority of ordinary folks who oppose this kind of law normally would not take the effort to post comments, especially if it requires registering and going through an authentication process (i tried to post but gave up). On the other hand, the hardcore homophobics would go out of their way to post derogatory comments. Dont get swayed by it.

The court has just ruled that parliment (legislature) is the competent authority to change such archaic laws.

[sustento]

What's more disturbing are the comments below the article.

Silent majority of ordinary folks who oppose this kind of law normally would not take the effort to post comments, especially if it requires registering and going through an authentication process (i tried to post but gave up). On the other hand, the hardcore homophobics would go out of their way to post derogatory comments. Dont get swayed by it.

The court has just ruled that parliment (legislature) is the competent authority to change such archaic laws.

I'm not swayed by it. I'm fortunate to live in the country that passed the 1861 Act rather than the country it applies to. We, unlike India, have moved on a bit.

[LeCharivari]

On closer reading, The Delhi high court had on July 2, 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC) and had ruled that sex between two consenting adults in private would not be an offence. This section 377 was introduced in 1861 by the ruling British. The court has only said that Parliament is authorized to remove Section 377, but as long as this provision is there, the court can not legalise this kind of sexual relationship, the Supreme Court bench observed. The bench, however, put the ball in Parliament's court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on the matter.

The correct decision in my view: if a decision to DE-criminalise homosexuality can be taken by two appointed, un-elected civil servants then so could a decision to RE-criminalise it. That would (or at least should) be totally wrong. It's a decision that should be made by the legislature - that's what they're elected for.

For those seriously interested in why the Indian Supreme Court decided as they did, its worth reading the actual judgement: http://www.livelaw.in/why-section-377-is-constitutional/

While that may sound as if I am happy condemning LGBT Indians to life imprisonment, that's not actually what's happening or what has ever happened in India. The law (section 377) is not specifically "anti-gay" but is about anyone: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine".

As far as I am aware less than 50 people have been convicted under the law since 1861; those were mainly under British rule, and NO convictions or prosectutions since Indian independence have been for consensual homosexual acts; what it has actually been used for is to provide an additional charge where rape involved sodomy.

http://www.indianexpress.com/news/the-nonenforceable-section-377/487704/

[LeCharivari]

When I read the article this morning the vast majority of the comments were anti-gay. Things must have changed in the past 7 hours.

Correct at the time of posting! Maybe some people read the posts and reacted accordingly .....

[Jingthing]

Depressing news. What can we boycott? I'm cancelling my holiday to Goa that I never was going to book anyway. Oh well.

[LeCharivari]

What's more disturbing are the comments below the article.

Silent majority of ordinary folks who oppose this kind of law normally would not take the effort to post comments, especially if it requires registering and going through an authentication process (i tried to post but gave up). On the other hand, the hardcore homophobics would go out of their way to post derogatory comments. Dont get swayed by it.

The court has just ruled that parliment (legislature) is the competent authority to change such archaic laws.

I'm not swayed by it. I'm fortunate to live in the country that passed the 1861 Act rather than the country it applies to. We, unlike India, have moved on a bit.

To be fair India doesn't apply the Act to LGBT and never has. While the UK may have moved on a bit since then, after India was saddled with the Act in 1947 the following decade Pitt-Rivers , Wildeblood and Lord Montagu were locked up and Turing was castrated. India has never been homophobic in the same way that western countries have (and some still are). Its a question of different cultures and different ways of doing things, so in my view they need to do things in their own way.

[Jingthing]

I'm not comfortable with such "tolerance" for hateful laws criminalizing homosexuality in ANY country. As GAY people in the world, we are part of an INTERNATIONAL struggle for legalization of both homosexuality itself and also the relationship aspect as well. Every country is in their own place and will find their own way, but speaking as a JEW I wouldn't tolerate criminalization of being a JEW any more or less than I would tolerate criminalization of being GAY. The government of India deserved to be STRONGLY and FORCEFULLY condemned for this recent action of blatant oppression against our brothers and sisters, the GLBT people of India.

Edited December 11, 2013 by Jingthing

[LeCharivari]

I think it may be worth pointing out that while Section 377 is NOT homophobic per se and has NEVER been used to prosecute (or persecute) anyone for a consensual homosexual act, there are still old specifically anti-gay laws on the books that are still used to persecute gays in the west, despite court rulings to the contrary, so we westerners should be careful to get our own house in order before castigating another country for something that only exists in our imagination.

Edited December 11, 2013 by LeCharivari

[Jingthing]

Why BOTH?
I really really don't get this angle of bending over backwards to rationalize and minimalize hatred and oppression against gay people ANYWHERE.

Yes, Virginia. gay people ARE hated and oppressed in much of the world. Putting our heads in the sand and acting like it is not so is NOT helpful.

Edited December 12, 2013 by Scott

[tominbkk]

A sad move backwards...

[sustento]

I'm not comfortable with such "tolerance" for hateful laws criminalizing homosexuality in ANY country. As GAY people in the world, we are part of an INTERNATIONAL struggle for legalization of both homosexuality itself and also the relationship aspect as well. Every country is in their own place and will find their own way, but speaking as a JEW I wouldn't tolerate criminalization of being a JEW any more or less than I would tolerate criminalization of being GAY. The government of India deserved to be STRONGLY and FORCEFULLY condemned for this recent action of blatant oppression against our brothers and sisters, the GLBT people of India.

But it isn't a "recent act of blatant oppression". It dates back to 1861.

[Scott]

It was upheld as constitutional today.

That means that no other law or overriding human rights acts are higher up than this law.

[isanbirder]

More important than what we think about it is what the Indians themselves think about it.

http://www.theguardian.com/world/2013/dec/11/india-supreme-court-reinstates-gay-sex-ban

Vikram Seth, the Indian prize-winning novelist, said he was hopeful. "Today is a great day for prejudice and inhumanity and a bad day for law and love. But law develops and love is resilient and prejudice will be beaten back," he told the NDTV news channel.

"I wasn't a criminal yesterday but I'm certainly a criminal today … But I do not propose to take the permission of their lordships when deciding who to love and who to make love with."

[Jingthing]

Indian gay activists react.

Global gay activists support them.

It seems like this horrible setback can't be fixed anytime soon:

http://www.slate.com/blogs/the_slatest/2013/12/11/india_s_supreme_court_restores_ban_on_gay_sex_four_years_after_it_was_decriminalized.html

But it seems unlikely the government will risk taking a stand on the issue in the short term. General elections are due by next May and the socially conservative Hindu nationalist opposition is already gathering momentum.

Edited December 12, 2013 by Jingthing

[sustento]

More important than what we think about it is what the Indians themselves think about it.

http://www.theguardian.com/world/2013/dec/11/india-supreme-court-reinstates-gay-sex-ban

Vikram Seth, the Indian prize-winning novelist, said he was hopeful. "Today is a great day for prejudice and inhumanity and a bad day for law and love. But law develops and love is resilient and prejudice will be beaten back," he told the NDTV news channel.

"I wasn't a criminal yesterday but I'm certainly a criminal today

That's simply not true. He was a criminal yesterday as he is today. The law hasn't changed. All that's happened is that the court has said that it's not competent to change the law and that if it needs changing (which it does) then it's the job of parliament.

[Jingthing]

I'm not comfortable with such "tolerance" for hateful laws criminalizing homosexuality in ANY country. As GAY people in the world, we are part of an INTERNATIONAL struggle for legalization of both homosexuality itself and also the relationship aspect as well. Every country is in their own place and will find their own way, but speaking as a JEW I wouldn't tolerate criminalization of being a JEW any more or less than I would tolerate criminalization of being GAY. The government of India deserved to be STRONGLY and FORCEFULLY condemned for this recent action of blatant oppression against our brothers and sisters, the GLBT people of India.

But it isn't a "recent act of blatant oppression". It dates back to 1861.

In my view, a petty pedantic point considering this is a recent SETBACK so it is indeed objectively a RECENT act of oppression. Duh! Throwing superficial semantic sugar water on news of global anti-gay oppression doesn't change what's actually happening.

Anyway, I found this very interesting article that gives some great detail and background on the Indian court case:

http://www.newyorker.com/online/blogs/newsdesk/2013/12/the-dubious-arguments-for-indias-gay-sex-ban.html

The final judgment makes it clear that the issue was not restraint per se, but the judges’ belief that the criminalization of homosexuality did not cause sufficient harm to justify any action from the court. The Parliament should feel free to strike the law down, they suggested, but the Supreme Court need not do so. The Naz Foundation is already filing an appeal, but the politicians may yet act on their own. A surprising number of leading political figures have spoken out against the court’s decision, and the ruling Congress Party has declared that it will introduce legislation to overturn the law in Parliament, a move supported by several other parties—a testimony to the enduring impact of the 2009 ruling by the Delhi High Court, which struck a blow against the conspiracy of silence about homosexuality in India. It would be foolish to expect that Parliament will resolve the matter soon, and yet there is some cause for hope: gay rights, which were hardly even discussed in India four years ago, have finally become a political issue. The rest is only a matter of time.

Edited December 16, 2013 by Jingthing

[LeCharivari]

I'm not comfortable with such "tolerance" for hateful laws criminalizing homosexuality in ANY country. As GAY people in the world, we are part of an INTERNATIONAL struggle for legalization of both homosexuality itself and also the relationship aspect as well. Every country is in their own place and will find their own way, but speaking as a JEW I wouldn't tolerate criminalization of being a JEW any more or less than I would tolerate criminalization of being GAY. The government of India deserved to be STRONGLY and FORCEFULLY condemned for this recent action of blatant oppression against our brothers and sisters, the GLBT people of India.

But it isn't a "recent act of blatant oppression". It dates back to 1861.

Neither does the law criminalize homosexuality, but that doesn't seem to matter to some .....

It's interesting to compare what some of the media said the judges said with what the judges actually said, since the judges did NOT say that they believed "that the criminalization of homosexuality did not cause sufficient harm to justify any action from the court" but that they simply considered that the applicants had "miserably failed" to make their case. Hardly the same thing.

http://www.newyorker.com/online/blogs/newsdesk/2013/12/the-dubious-arguments-for-indias-gay-sex-ban.html : "The final judgment makes it clear that the issue was not restraint per se, but the judges’ belief that the criminalization of homosexuality did not cause sufficient harm to justify any action from the court."

http://www.livelaw.in/why-section-377-is-constitutional/ "The writ petition filed by respondent No.1 was singularly laconic in as much as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. ..... These details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society."

Its also interesting to note that the applicants didn't come up with a single specific case of the law ever being used to prosecute or persecute gays, and the only case actually referred to at the hearing which had been prosecuted under the Act was one from nearly a century ago when a man was prosecuted for having "intercourse with the nose of a cow" - hardly a surprising prosecution in India given the sacred status of cows to Hindus, even if the cow was a consenting adult.

In other words, and despite all the hype, there was NO evidence presented that there has been any "blatant oppression against our brothers and sisters, the GLBT people of India" at all.

[Jingthing]

I'm at a loss for words. No oppression against gay people in India? Dude, TALK to some gay people who LIVE in India. I have.

Edited December 16, 2013 by Jingthing

[anon8]

Quote:

LeCharivari:

In other words, and despite all the hype, there was NO evidence presented that there has been any "blatant oppression against our brothers and sisters, the GLBT people of India" at all.

End quote.

The level of ignorance in this post from forum member LeCharivari is mind blowing. Or is this some inside joke that im not getting?

There are lots of posts from various users that i disagree with. But this now is reaching whole new hights.

The forum member LeCharivari is capable of forming a full sentence in English. Often confusing, long sentences, filled with quotes, and then more quotes in italics, that make reading, and trying to follow the train of thought difficult for me..

But this post now!? What is this?

Is this last post post regarding gay peoples rights in India some deep sarcasm, that im unable to grasp, or is it rambling of very, very confused mind? I cant tell any more.

Edited December 16, 2013 by valgehiir

[sustento]

Quote:

LeCharivari:

In other words, and despite all the hype, there was NO evidence presented that there has been any "blatant oppression against our brothers and sisters, the GLBT people of India" at all.

End quote.

The last time the Act was used to prosecute someone was nearly a century ago thus there has been 'no LEGAL blatant oppression' etc.

If no-one has been prosecuted for homosexuality for the past 100 years you can hardly claim that THE STATE is oppressing them.

Public opinion is another thing altogether. Many Indians are very much against homosexuality and it's not just in India. I have a Sikh friend whose parents, on finding out he was gay and had a boyfriend, kidnapped him. We had to report them to the police in order to get them to release him. He was 24 years old at the time.

If you repealed the law which criminalises homosexuality it would MAKE NO DIFFERENCE AT ALL to the attitude of the majority of Indians.

The problem with India is the same as the problem with Russia. It's not the law you're fighting against. It's the public.

Edited December 16, 2013 by sustento

[Scott]

Repealing a law does make a lot of difference to a lot of people. It also makes a huge difference in how the State treats an individual.